MULTICHOICE GROUP SUBMISSION COPYRIGHT AND PERFORMERS PROTECTION AMENDMENT BILLS 16 JULY 2021
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MULTICHOICE GROUP SUBMISSION
COPYRIGHT AND
PERFORMERS PROTECTION AMENDMENT
BILLS
16 JULY 2021Table of Contents
INTRODUCTION ............................................................................................ 2
SCOPE OF THESE SUBMISSIONS .............................................................. 4
SECTION A: COPYRIGHT BILL AND INTERNATIONAL TREATIES .......... 8
Technology Protection Measures (TPMs) and the Marrakesh Treaty ...... 8
Mandatory limitations and exceptions for persons with disabilities ..... 15
Authorised persons ................................................................................... 18
Cross-Border Exchange ............................................................................ 21
SECTION B: PPA BILL AND INTERNATIONAL TREATIES ...................... 23
SECTION C: OTHER ISSUES ..................................................................... 24
ANNEXURE A – SUMMARY OF PREVIOUS SUBMISSIONS.................... 25
Comments on the PPA Bill ........................................................................ 25
Comments on the Copyright Amendment Bill ......................................... 35
1INTRODUCTION
1 Electronic Media Network Pty Ltd ("M-Net") and MultiChoice Pty Ltd
("MultiChoice") thank the Parliamentary Portfolio Committee on Trade and
Industry ("Portfolio Committee") for the opportunity to make written submissions
on specific clauses of the revised Copyright Amendment Bill [B13B-2017]1 ("the
Copyright Bill") and alignment of both the Copyright Amendment Bill and
Performers' Protection Amendment Bill [B24B-2016] ("PPA Bill") with obligations
set out in International treaties. As licensed subscription broadcasters, we are
investors in and users of a range of works of copyright. We are also the authors
of our own works (in the form of broadcasts). The policy and legislative
framework governing copyright matters are thus of critical importance to us and
the entire broadcasting industry.
2 M-Net and MultiChoice are involved in the production, acquisition and distribution
of local and international content. We are committed to nurturing South African
talent and invest around R2 billion a year in the production of local television
programming and the acquisition of locally produced television channels:
2.1 M-Net acquires local programmes, which are packaged into channels.
Some of M-Net's major local channel brands include M-Net, Vuzu,
kykNet and the AfricaMagic channels.
2.2 MultiChoice, in addition to broadcasting M-Net's channels, acquires
channels from local and international suppliers. Local channels
acquired by MultiChoice include Mindset Learn, Dumisa, ENCA, SABC
News, Home Channel, Ignition, CNBC Africa Gautv and Business Day
TV.
3 MultiChoice has also pioneered the introduction of video-on-demand services to
the South African market with services like DStv catch-up (which allows
1 Copyright Amendment Bill [B13B-2017] - clause 13 (sections 12A, 12B, 12C and 12D), clause 19
(section 19B) and clause 20 (section 19C)
2subscribers to watch content in their own time) and DStv BoxOffice (a movie
rental service).
4 M-Net and MultiChoice welcome efforts to improve the financial well-being of
authors (in the broad copyright sense) and performers (by which we mean actors,
singers, musicians and dancers) in South Africa. It is in the interests of all
stakeholders in the entertainment industry, including content producers and
broadcasters, that authors and performers remain incentivised to create original
copyright works. However, incentivising the creation of original copyright works
and performances requires a fair and equitable balance to be struck between the
authors and performers of the works, on the one hand, and the commercial
interests of those parties who are willing to invest in that creation (e.g.
broadcasters, film companies, production houses and employers more generally)
on the other hand.
5 The reality is that investors are an essential and integral part of the production
ecosystem and they must therefore be encouraged to invest in the creation of
original work, by having the opportunity to generate a return on their investment.
Simply put, any measures which increase the cost of creating original South
African television content, may have the unintended consequence of reducing
investment in television production and, ultimately prejudicing the performers and
authors that the measures were intended to protect in the first instance.
6 Broadcasters are at present significant investors in local content creation and the
local production industry. As we've already indicated, M-Net and MultiChoice
invest approximately R2 billion a year in local content. The SABC makes
investments of a similar magnitude. Through these investments, public and
commercial broadcasters generate thousands of hours of original content
annually. This, in turn, has a direct and positive effect on employment. Increasing
investment in the film and television industry is vital to the growth of the industry
and will have a significant impact on both output and employment. Investors rely
on a strong and predictable legislative framework to protect investments made
in the production of local content. Copyright policy and legislation cannot only
consider the rights and obligations of creators and users of works of copyright
without taking into account the implications of any proposal on investment. The
3Bills should reflect an appropriate balance between the rights and obligations of
a range of stakeholders – creators of works, the investors/broadcasters who
invest in the creation of works, and the public, who use and benefit from the
works created.
7 M-Net and MultiChoice recognise that the Bills has many laudable objectives and
that a number of the amendments proposed in the Bill are long overdue. In
respect to those objectives and amendments, we have engaged with the Portfolio
Committee since the very beginning of this process and have made constructive
proposals on the drafting of those provisions.
SCOPE OF THESE SUBMISSIONS
8 We note that the advertisement expressly pointed out that the "call for further
submission is in response to the President's reservations in that various sections
of the Bill, including section 12A, which deals with the fair use of a work or the
performance of a work, was not put out for public comment before the final
version of the Bill was published and that certain copyright exceptions may be
unconstitutional." The advertisement then requested the public to submit written
submissions with reference only to clause 13 (sections 12A, 12B, 12C and 12D),
clause 19 (section 19B) and clause 20 (section 19C) of the Copyright
Amendment Bill [B13B-2017]. We note that these were not the only clauses
about which the President expressed reservations. Many of his reservations,
upon which we have previously made comment, including retrospectivity,
arbitrary deprivation of property and the Minister’s powers have not been
addressed and no further comment has been requested. Based upon the
Portfolio Committee’s report and recommendations to the National Assembly
prior to the Bill being re-committed to the Portfolio Committee we assume that is
because the Portfolio Committee has noted the Presidents concerns and these
clauses will be deleted. Based on that assumption we have made no comments
on those clauses. If that is not the case we trust that the Portfolio Committee will
provide an opportunity for public comment on those specific clauses which the
President expressed his reservations.
49 We wish to put it on record that these specific clauses mentioned by the
President and which are set out in the notice inviting public comment are not the
only clauses that were not put out for public comment before the final version of
the Copyright Bill was published. Discussions on fair use/fair dealing and the
exceptions have dominated the discourse on this Bill in Parliament and the
Media, with the result that other critical provisions for the television production
and broadcasting sector, which were changed materially from when the Bill was
published in 2017, have not been properly considered. For example, amongst
others, clauses on definitions, nature of copyright works and related royalty
payment, communication to the public, ownership of copyright and assignment
and licences in respect of copyright. The Portfolio Committee under the Fifth
South African Parliament did not invite comment on these material changes,
again choosing to focus on specific sections of the Copyright Bill. We made
extensive submissions to the Portfolio Committee at the time, but it appears that
no regard was paid to our proposals as they went beyond the narrow sections
on which comment had been requested. In our view, the decision by this Portfolio
Committee to once again, not invite comment on all aspects of both Bills,
perpetuates the procedural defect caused by the previous Portfolio Committee's
process. As a result, there has been inadequate public consultation on several
important aspects of the Bill.
10 When early drafts of the Copyright Bill were discussed at the National Economic
Development and Labour Council (Nedlac) a number of flaws were pointed out.
In our view, the Bill should have been further developed through constructive
engagements in this forum before proceeding to Cabinet and Parliament.
However, despite the concerns raised at Nedlac, the Bill was still introduced to
Parliament by the Minister on 16 May 2017. After the Portfolio Committee had
invited public comment, received submissions and held public hearings in 2017
it was clear to the Portfolio Committee that there were still significant problems
with the Bill which would require substantive re-drafting to address. It was also
clear based on audio recordings of the Portfolio Committee (available on
pmg.org.za) that these flaws were not just technical amendments, but also policy
decisions usually dealt with by the executive arm of government. It is at this point
that the Portfolio Committee should have had in mind the old Kenyan proverb
5"that a fully grown tree cannot be bent into a walking stick" and referred the Bill
back to the Minister and Department for further work instead of continuing to
attempt to shape it into a more pleasing form.
11 As the Portfolio Committee wished to finalise the Bill before the end of the term
of fifth Parliament, there was a rushed process and limitations were placed on
which clauses and sections the public were permitted to comment on. These
limitations were detrimental to the public process and undermined section 59(1)
of the Constitution that requires the National Assembly to facilitate public
involvement in its legislative and other processes. Before finalisation, the Bills as
whole should have been published for public comment to allow for consolidated
input on all aspects of the Bill. There should also have been an extensive socio-
economic and regulatory impact assessment by credible experts. Bearing in
mind the highly specialised nature of copyright law, the Bill should also have
been submitted by either Parliamentary legal services or the State Law Advisors
to a Senior Counsel specialising in copyright law.
12 The Copyright Bill, as it stands now, despite commendable objectives is an ill-
conceived and poorly drafted piece of legislation which, if promulgated in its
current form, will likely lead to legal uncertainty, litigation and, most importantly,
the further impoverishment of the very people that it seeks to benefit and protect.
13 A particular cause for concern (but by no means the only one), is that a Bill which
was supposed to be updated to take account of digital technology developments,
and implement Treaty obligations in this regard from 1996, 2012 and 2013 and
which entered Parliament in 2017 is now completely out of step with the policy
developments and technology advances that have happened in the interim.
14 The Bill is still trying to deal with the 3rd Industrial revolution (the digital
revolution), whereas we are now in the 4th Industrial Revolution (4IR) and no
attempt has been made to carry out a socio-economic impact assessment of this
Bill in relation to the policy process that government has undertaken around 4IR
and the recommendations of the Presidential Commission on the Fourth
6Industrial Revolution (PC4IR).2 This is fairly important as government wishes to
take advantage of 4IR to benefit South Africa and this benefit will primarily be in
the area of developing intellectual property rights in content, services and
technologies. The Copyright Bill as it stands now does not incentivise creation,
innovation or investment in content and 4IR based technology protection
measures.
15 Our primary submission is that the Copyright Bill is so fundamentally flawed and
out of step with recent events that the process of drafting may need to be started
anew and that the Bill ideally should be referred back to the Minister and the
Department of Trade and Industry for re-drafting to take into consideration the
impacts the Bill on South Africa’s 4IR objectives before being introduced again
to Parliament. Failing that, now that it has been re-committed by the National
Assembly to the Portfolio Committee in the Sixth Parliament it should at the very
least be dealt with holistically by the Portfolio Committee rather than in a
piecemeal fashion and with limitations on the public consultation process
required by the Constitution. This would allow for a Bill which provides a coherent
and economically sustainable framework that will allow for the continued
investment in, and exploitation of, copyright works as well as the protection of
South African creatives.
16 In stark contrast to the Copyright Bill, the PPA Bill only requires amendments in
several specific instances, insofar as the legality of the Bill is concerned to
address issues around freedom to contract, impermissible delegation to the
Minister and unreasonable administrative actions and penalties, which will not
require substantial re-drafting or delay its progression. MultiChoice and M-Net
would in fact welcome the promulgation of the PPA Bill with these key
amendments in the interests of protecting the rights of performers. To achieve
this objective we would recommend that the PPA Bill be de-linked at this stage
from the Copyright Amendment Bill so that it can rapidly progress through
Parliament on its own merits and that the Portfolio Committee request public
comment on legal and functional issues that affect the drafting of the PPA Bill so
2 Government Notice 591 of 2020, Government Gazette No. 43834
7that it may be finalised by the National Assembly and sent back to the President
for assent.
SECTION A: COPYRIGHT BILL AND INTERNATIONAL TREATIES
17 The Portfolio Committee invited submissions on the alignment of the Copyright
Bill and the PPA Bill with the obligations set out in international treaties, including
the World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT), the
WIPO Performance and Phonograms Treaty (WPPT), and the Marrakesh Treaty
to Facilitate Access to Published Works for Persons Who Are Blind, Visually
Impaired, or Otherwise Print Disabled. We will not dwell at any great length on
the specific sections of the Copyright Bill pertaining to exceptions. Our focus will
be on sections, such as those pertaining to the technology protection measures
(TPMs) which are both Treaty related and exceptions related. These sections
have largely been overlooked throughout this lengthy process. This despite the
fact that one of the primary reasons for the update to our copyright law is to align
with International Treaties and protect the owners of copyright works and
performers from unauthorised use of their works. However, we will do an
illustrative analysis of just one exception, s19D, to show just how the Copyright
Bill often goes far broader than the relevant Treaty, in this case the Marrakesh
Treaty, which read together with s28P on circumvention of TPMs may create
potential harm to the rights of creators and owners of copyright works .
Technology Protection Measures (TPMs) and the Marrakesh Treaty
18 M-Net and MultiChoice previously made extensive submissions on TPMs to the
Portfolio Committee. We highlighted that there are broadly speaking two types of
technological protection measures, namely "access control" TPMs and "copy
control" TPMs. TPMs using both "access control" and "copy control" technologies
are a critical tool used by broadcasters and other copyright holders in the
protection of copyright works against piracy and we previously proposed in
submissions to the Portfolio Committee that the definition of TPMs in the
Copyright Bill should be broadened to include both types of TPMs. The Portfolio
Committee ultimately decided not to broaden the definition to include "access
control" TPMs, possibly because of the Cybercrime Bill which was being dealt
8with by another Parliamentary Portfolio Committee at the same time or because
circumvention of "access control" TPMs is never permitted except in very limited
circumstances. Ultimately, the Cybercrime Bill, which later became the
Cybercrimes Act, focused on computer crime and did not address broadcast
signal piracy issues.
19 Subsequently, the Minister of Communications and Digital Technologies has
published a draft White Paper on Audio and Audiovisual Content Services that
notes that the Copyright Bill and the PPA Bill "have not addressed signal piracy
and their definition of Technology Protection measures do not extend to
broadcasting technology protection measures."3 Accordingly, the draft White
Paper "proposes that legislative and regulatory mechanisms to strengthen
protection against signal piracy must be introduced in the Electronic
Communications and Transactions Act…"4 Consequently, M-Net and
MultiChoice wish to bring it to the attention of the Portfolio Committee that despite
our earlier submissions requesting a broadening of the definition, those
submissions have now been overtaken by the events outlined above and we now
support the retention of the current definition of TPMs in the Copyright Bill that
explicitly excludes "access control" TPMs in part (b) of the definition. That issue
having been clarified; we turn to deal with the treatment of TPMs in the Copyright
Bill.
20 Article 11 of the WCT requires that:
"Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that
are used by authors in connection with the exercise of their rights under this
3 Draft White Paper on Audio and Audiovisual Content Services Policy Framework: A New Vision for
South Africa 2020, published by the Minister of Communications, Department of Communications
and Digital technologies. Government Gazette, No.43797, Notice No. 1081, 9 October 2020,
para 5.6.8
4 Draft White Paper on Audio and Audiovisual Content Services Policy Framework: A New Vision for
South Africa 2020, published by the Minister of Communications, Department of Communications
and Digital technologies. Government Gazette, No.43797, Notice No. 1081, 9 October 2020,
Para 5.6.9
9Treaty or the Berne Convention and that restrict acts, in respect of their works,
which are not authorized by the authors concerned or permitted by law." 5
21 Article 18 of the WIPO Performances and Phonograms Treaty contains a parallel
provision that:
"Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that
are used by performers or producers of phonograms in connection with the
exercise of their rights under this Treaty and that restrict acts, in respect of
their performances or phonograms, which are not authorized by the
performers or the producers of phonograms concerned or permitted by law."6
22 The WCT and the WPPT came about because of advances in digital technology
which created new opportunities for content to be distributed and offered users
new means to receive and appreciate content. These technological advances
also created a challenge for the protection of copyright works. How can one
protect a copyright work in a digital world where copying is easy and inexpensive,
where every copy made whether from an original or a copy is flawless and
distribution to consumers anywhere in the world via the Internet is virtually cost
free and immediate?7
23 The advances in digital technology have meant that copyright infringement no
longer requires dedicated pirates with access to expensive reproduction
equipment and physical distribution channels. Now any consumer with access
to a computer and the Internet can make and distribute unauthorised high-quality
copies of literary, audio and video works for profit or non-profit purposes.8 The
fact that most home users who engage in this form of piracy do not up-load
unauthorised copies to online websites for commercial benefit, does not deter
5 WIPO Copyright Treaty (WCT) 1996
6 WIPO Performances and Phonograms Treaty (WPPT) 1996
7 Marks, D.S. and Turnbull, B.H. 1999. “Technical Protection Measures: The Intersection of
Technology, Law and Commercial Licenses” at Workshop on implementation Issues of the WIPO
Copyright Treat (WCT) and the WIPO Performance and Phonograms Treaty (WPPT), held by the
World Intellectual Property Organisation (WIPO) in Geneva, on 6 & 7 December 1999 (WCT-
WPPT/IMP/3), pg 1
8 Marks, D.S. and Turnbull, B.H. 1999. “Technical Protection Measures: The Intersection of
Technology, Law and Commercial Licenses” at Workshop on implementation Issues of the WIPO
Copyright Treat (WCT) and the WIPO Performance and Phonograms Treaty (WPPT), held by the
World Intellectual Property Organisation (WIPO) in Geneva, on 6 & 7 December 1999 (WCT-
WPPT/IMP/3), pg 1
10those online websites from generating profit from advertising revenue based on
the number of users uploading and downloading from their websites. These
websites cause substantial economic harm to copyright owners, authors, artists
and performers.
24 The answer for copyright owners to address this harm was to use technology
(i.e. TPMs) against technology, to prevent reproduction. However, TPMs by
themselves will always be vulnerable to technologies specifically developed to
circumvent them and thus, there needs to be legal protection against the
circumvention of TPMs and penalties for circumventing them for the purposes of
piracy.9
25 This is why the WCT and the WPPT oblige signatories to provide adequate legal
protection against circumvention of TPMs. The treaties do not specifically provide
for exceptions to this obligation, but at workshops hosted by WIPO on
implementation of the two Treaties it has been noted that "Any possible
exceptions to anti-circumvention law should be narrowly crafted and restricted to
special cases that do not defeat the normal functioning and application of
protection technologies and do not unreasonably prejudice the legitimate
interests of content owners in employing such protection technologies. Because
devices and services, by their very nature, cannot be restricted to particular uses,
exceptions to anti-circumvention laws do not appear well suited to devices and
services. Rather, they are better considered in relation to certain types of
individual conduct and subject to a set of reasonable conditions."10
26 It is therefore clear that any exception to the TPM circumvention prohibition must
be narrowly formulated so as not to defeat the purpose of the legislative
9 Marks, D.S. and Turnbull, B.H. 1999. “Technical Protection Measures: The Intersection of
Technology, Law and Commercial Licenses” at Workshop on implementation Issues of the WIPO
Copyright Treat (WCT) and the WIPO Performance and Phonograms Treaty (WPPT), held by the
World Intellectual Property Organisation (WIPO) in Geneva, on 6 & 7 December 1999 (WCT-
WPPT/IMP/3), pg 3
10 Marks, D.S. and Turnbull, B.H. 1999. “Technical Protection Measures: The Intersection of
Technology, Law and Commercial Licenses” at Workshop on implementation Issues of the WIPO
Copyright Treat (WCT) and the WIPO Performance and Phonograms Treaty (WPPT), held by the
World Intellectual Property Organisation (WIPO) in Geneva, on 6 & 7 December 1999 (WCT-
WPPT/IMP/3), p.9
11protections afforded to a copyright owner. They must also focus on an
individual’s conduct rather than on the device itself. .
27 It should be noted Article 10 of the WCT and Article 16 of the WPPT in
accordance with the Berne Treaty, confine the acts "permitted by law" to any
limitations of or exceptions to rights provided for in the treaties to certain special
cases which do not conflict with the normal exploitation of the works and do not
unreasonably prejudice the legitimate interests of the owner of the works.
28 In line with the WCT and the WPPT obligations, the Copyright Bill (by way of
clause 27) inserts s28O into the Act on prohibited conduct in respect of TPMs. It
should be noted that subsection (6) in s28O in the Copyright Bill which refers to
sections 86, 87 and 88 of the Electronic Communications and Transactions Act
("ECT Act") will need to be re-drafted to refer to relevant sections in the
Cybercrime Act instead as these sections of the ECT Act referenced in the
Copyright Bill have been repealed by that Act.
29 However, M-Net and MultiChoice are concerned about the current drafting of
s28P (which deals with exceptions to s28O). As presently formulated, it permits
broad-scale circumvention of TPMs and effectively renders s28O for the
protection of TPMs in the Copyright Bill nugatory. It’s becomes impossible to
enforce TPMs because the infringer will simply claim ownership or the device or
trading of circumvention devices are for fair use reasons.
30 In s28P(1) any person can use a TPM circumvention device to perform any act
permitted in terms of any exception provided for in the Copyright Bill (considering
the fair use approach employed in exceptions and limitations clauses that is
extremely broad), or sell, procure for use, design, adapt or be in possession of
any device, including a computer program, to overcome security measures for
the protection of data for any exception permitted by the Copyright Bill. The
exception in s28P is so broad that it ultimately harms the general effectiveness
of the TPM to prevent copying of works. This is because once a "hack" to TPMs
has been developed to allow legitimate access in terms of the exceptions
permitted by the Bill, it can also thereafter be used to make unauthorised copies
which are not permitted by the Bill.
1231 This is a specific area where the "fair use" or "fair dealing" exceptions approach
of the old analogue world do not align well with digital devices and services. As
the harm to the rights holder in the digital world is far greater due to the ease of
reproduction, the high quality of the copy made and the ability to distribute the
copy globally than the harm caused by the same action in the analogue world.
For example, in the analogue world if a person made a fair use copy of a video
cassette, and it was then illegally distributed to that person’s friends the harm
would be localised. In the digital world, a digital copy is not confined to a physical
medium and could rapidly be distributed globally through streaming websites
creating harm in perpetuity to the rights holders ability to exploit their rights in
different markets around the world. In this case, implementation would best be
served not with permitting circumvention (and the trade in circumvention
devices), but instead using the power of digital technologies to provide solutions,
for example "copy once" permissions that allows a user who purchased a work
to make a single copy or providing the user who purchases a physical copy the
right to access digital copies in an online library thereby negating the need for
the user to make their own copies.
32 The "one size fits all approach" of S28P also entirely overlooks that a legitimate
and reasonable right to circumvent a TPM in respect of say for example a
cinematograph film offered on DVD or Blu Ray may not necessarily be legitimate
or reasonable in the context of a cinematograph film via broadcasts or
programme-carrying signals and stored on a set top box decoder (STB) hard
drive. This is because circumvention of "copy controls" TPM on the STB hard
drive would secure access not only to content to which the user may have a
reasonable public interest right to access in terms of the Copyright Bill, but also
expose content to which they do not have a right to access. For example, the
hard drive of the DStv Explora stores both broadcasted content and rental
movies.
33 The gross overreach for circumvention of TPMs does not stop there. s28P(2)
also contemplates a situation where a person may face difficulty in the
circumvention of the TPMs on their own as permitted by s28P(1) and creates an
opportunity for them to request the copyright owner for assistance in
13circumventing the TPMs to perform the permitted act in s28P(1) and if the
copyright owner refuses their request or failed to respond in a reasonable time
engage the services of a third party to assist them with the circumvention of the
TPMs.
34 Effectively, provisions of s28P(2) enable persons who wish to circumvent a TPM
to take the law into their own hands. All that they need do is to give notice that
they intend to circumvent the protection measure (citing a provision of the Act
justifying its conduct, which may be entirely spurious and unfounded) and they
are then entitled, upon the owner's refusal to grant consent to a third party, to
proceed to circumvent the measure. This effectively nullifies the protections
sought to be introduced by s28O of the Act for TPMs. s28P falls foul of the Treaty
obligations in that it undermines the obligation of adequate legal protection by
not being "narrowly crafted and restricted to special cases".
35 When drafting s28P neither the Department of Trade and Industry, nor the
Portfolio Committee made any attempt to develop a more nuanced approach or
even take into consideration:
35.1 The general availability of works (not individual formats);
35.2 the impact that any possible exception to the prohibition against
circumventing TPMs would have on the value of works and the efficacy
of protection technologies;
35.3 the existence of any licensing agreements between rightsholders and
public libraries and archiving institutions,
35.4 any copying opportunities that are in practice being built into copy
protection measures for fair use or fair dealing,
35.5 how digital licences use innovative solutions to deal with exceptions
35.6 any voluntary technical measures to facilitate exceptions and
limitations to the rights of content owners that have been taken or other
steps taken by government to ensure access which would negate the
14need for exceptions to the general prohibition against circumvention of
TPMs.
36 To avoid general harm to the effectiveness of TPMs, the only circumstance in
which a technological protection measure circumvention device should be
permitted to be used is:
36.1 for law enforcement purposes by an authorised State investigative,
protective or intelligence agency in accordance with applicable laws;
36.2 where the owner of the technological protection measure has
consented to that use;
36.3 where ordered by a court or the Tribunal after the owner has refused
access;
36.4 where a person authorised by government in terms of s19D for the
benefit of persons with disabilities; and
36.5 where a person authorised by government in terms of s19C for
libraries, archives, museums and galleries.
Note: In s19D in the Copyright Bill there has been an attempt to put in
place a government managed regime to authorize persons to make
copies for persons with disabilities without first obtaining the permission
of the owner of the works. A similar provision should be considered for
s19C. Where government has authorised a person in terms of s19D
and s19C there should also be a requirement to keep records of such
circumvention of TPMs for inspection as may be prescribed in
regulation. There should also be kept a record of a reasonable attempt
being made to obtain a copy without TPM from the owner of the works.
Mandatory limitations and exceptions for persons with disabilities
37 South Africa is not a signatory of the Marrakesh Treaty to facilitate access to
published works for persons who are blind, visually impaired or otherwise print
disabled ("the Marrakesh Treaty"). However, in line with the Marrakesh Treaty
15the Copyright Bill seeks to create a mandatory limitation and exception for
persons with disabilities in clause 20 which inserts s19D. M-Net and MultiChoice
support this objective, but note that as currently drafted when read together with
clause 27 of the Copyright Bill which inserts s28P relating to the circumvention
of TPMs this might lead to unreasonable infringement of copyright. To cure this
ill it is proposed that s19D and the Copyright Bill should more closely follow the
language of Marrakesh Treaty, properly define the terms used in s19D in the
definitions section of the Copyright Bill and provide guidance as to who the
persons are that s19D(1) proposes be prescribed to make an accessible format
copy for the benefit of a persons with a disability, since these persons will be
permitted in terms of s28P to circumvent TPMs.
38 This section also needs to be clearer on what copyright works are being made
into an accessible format copy. In the Marrakesh Treaty, "works" means "literary
and artistic works within the meaning of Article 2(1) of the Berne Convention for
the Protection of Literary and Artistic Works, in the form of text, notation and/or
related illustrations, whether published or otherwise made publicly available in
any media."11 However, the text of Marrakesh Treaty has been imported into the
Copyright Bill where "works" is defined as all copyright works thereby creating a
far wider application of this section than that in the Treaty it has been copied from
where it is limited to literary and artistic works within the meaning of the Berne
Convention.
39 Similarly, the application of the Treaty is not to all persons with disabilities, but
only to the blind and the visually impaired to address the lack of lesser known
texts in braille and audio book formats.12 It is unclear if this was done intentionally
or not. If the intention was to include all works and all persons with disabilities
whether they require such access or not would not be aligned with the Treaties
the country is a signatory of, nor with the test of reasonableness for an exception
that infringes on the copyright owner’s rights. It also ignores that government has
used other means in different media to obtain access for persons with disabilities,
11 Article 2 of the WIPO administered Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013
12 Preamble of the WIPO administered Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013
16for example in computer programs to impose requirements for access to persons
with disabilities, for telecommunication service providers to provide handsets that
cater for persons with disabilities and in broadcasting to impose obligations on
licensees to provide audio descriptions and subtitles and make use of other
access technologies for persons with disabilities.
40 Accordingly it is proposed that wherever "works" appears in s19D it be prefaced
by "literary or artistic" to align with the Marrakesh Treaty and South Africa's
obligations under the Berne Convention. Furthermore, it is proposed that the
following text based on definition of beneficiaries in Article 3 of the Marrakesh
Treaty be included in the definition section of the Copyright Bill:
"Persons with disabilities means a person who:
(a) is blind;
(b) has a visual impairment or a perceptual or reading disability which
cannot be improved to give visual function substantially equivalent to
that of a person who has no such impairment or disability and so is
unable to read printed works to substantially the same degree as a
person without an impairment or disability; or
(c) is otherwise unable, through physical disability, to hold or manipulate a
book or to focus or move the eyes to the extent that would be normally
acceptable for reading; regardless of any other disabilities." 13
41 In s19D an exception is created for a person to make an accessible format copy
for the benefit of a person with a disability and yet the Bill then fails to define, as
the Marrakesh Treaty did, what an accessible format copy is which once gain
unduly broadens the scope of the exception and leaves it up to presumably the
Minister or even the court to make such a determination. It is recommended that
the definition as contained in Article 2 of the Marrakesh Treaty be inserted in the
Definitions of the Copyright Bill:
"Accessible format copy" means a copy of a work in an alternative manner or
form which gives a person with disabilities access to the work, including to
permit the person to have access as feasibly and comfortably as a person
without visual impairment or other print disability. The accessible format copy
13 Article 3 of the WIPO administered Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013
17is used exclusively by beneficiary persons and it must respect the integrity of
the original work, taking due consideration of the changes needed to make
the work accessible in the alternative format and of the accessibility needs of
the beneficiary persons;"14
Authorised persons
42 It is clear that s19D(1) intention is to implement Article 4 of the Marrakesh Treaty
which has the object of creating an exception that would allow authorised entities
to be permitted to make accessible format copies of a literary or artistic work
without the authorisation of the copyright owner. However, once again in stark
contrast the Marrakesh Treaty, the Bill fails to include a definition of authorised
persons.
43 Article 2 of the Marrakesh Treaty defines authorised entities as follows:
"authorized entity" means an entity that is authorized or recognized by the
government to provide education, instructional training, adaptive reading or
information access to beneficiary persons on a non-profit basis. It also
includes a government institution or non-profit organization that provides the
same services to beneficiary persons as one of its primary activities or
institutional obligations. 15
An authorized entity establishes and follows its own practices:
(i) to establish that the persons it serves are beneficiary persons;
(ii) to limit to beneficiary persons and/or authorized entities its distribution
and making available of accessible format copies;
(iii) to discourage the reproduction, distribution and making available of
unauthorized copies; and
(iv) to maintain due care in, and records of, its handling of copies of works,
while respecting the privacy of beneficiary persons in accordance with
Article 8."
44 We propose that s19D(1) be amended to reflect the text of the Marrakesh Treaty
and that the definition of "authorised entities" in Article 2 of the Marrakesh Treaty,
14 Article 2 of the WIPO administered Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013
15 Agreed statement concerning Article 2(c): For the purposes of this Treaty, it is understood that
“entities recognized by the government” may include entities receiving financial support from the
government to provide education, instructional training, adaptive reading or information access to
beneficiary persons on a non-profit basis
18with necessary amendments, be inserted in the Definitions of the Copyright Bill
as follows:
"authorised person" means an entity that is authorised or recognized by the
government to provide education, instructional training, adaptive reading or
information access to persons with disabilities on a non-profit basis. It also
includes a government institution or non-profit organization or entities
receiving financial support from government that provides the same services
to persons with disabilities as one of its primary activities or institutional
obligations."
45 Inserting the definition as outlined above obviates the need to prescribe who
these authorised persons are. We would recommend the following amendments
to the text of s19D in the Copyright Bill to align with the text of Article 4,
subsection 2 (a)of Marrakesh Treaty. We note that 2(a)(iii) was omitted when this
was transposed to the Copyright Bill and have included it as a new s19D(1)(c) in
the proposed drafting below. We would propose using the term "electronic
communication" which is clearly defined in the Electronic Communications Act,
2005, rather than the narrower term "digital communications" which would
exclude any analogue forms of communication which continue to be used
throughout Africa. We would also suggest that the sharing of the accessible
format copy be permitted to take place between authorised persons. We
therefore recommend the following amendments to s19D(1) in the Copyright Bill:
"19D. (1) Any authorised person as may be prescribed and that serves
persons with disabilities may, without the authorization of the copyright
owner, make an accessible format copy for the benefit of a person with
a disability of a literary or artistic work, or obtain from another authorised
person an accessible format copy and supply that accessible format
copy to a person with a disability by any means, including by non-
commercial lending or by electronic digital communication by wire or
wireless means, and undertake any intermediate steps to achieve these
objectives, if subject to the following conditions are being met:
(a) The person wishing to undertake any activity under this
subsection must have lawful access to the copyright literary or
artistic work or a copy of that work;
(b) the copyright literary or artistic work must be converted into an
accessible format copy, which may include any means needed to
navigate information in the necessary to create such accessible
format copy but which does not introduce changes other than
those needed to make the work accessible to a person with a
disability;
19(c) such accessible format copies are supplied exclusively to be used
by persons with disabilities; and
(c)(d) the activity under this subsection must be undertaken on a non-
profit basis."
46 The second element of the definition of "authorised entities" in the Marrakesh
Treaty dealt with practices that authorised persons should put in place and follow.
M-Net and MultiChoice felt that this element would be better placed in the text of
s19D rather than being included in the definition of "authorised persons" we have
proposed be inserted in the Copyright Bill. Especially, as practices might be an
area where the Minister may wish to make more formal regulations for the
purposes of monitoring compliance with Copyright law and an empowering
provision to this effect may be necessary here. We therefore propose a new
s19D(2) be inserted here with the necessary re-numbering to take place to the
existing subsections, e.g. the current subsection (2) to be re-numbered (3) and
so forth.
"19D (2) An authorised person must put in place and follow practices:
(a) to establish that the persons it serves are persons with disabilities;
(b) to limit to persons with disabilities and/or authorised entities its
distribution and making available of accessible format copies;
(c) to prohibit the reproduction, distribution and making available of
unauthorised copies; and
(d) to maintain due care in, and records of, its handling of copies of
literary or artistic works, while respecting the privacy of beneficiary
persons in accordance with the provisions of the Protection of
Personal Information Act."
47 The Portfolio Committee may also choose to empower the Minister in the
Copyright Bill to prescribe regulations to put in place the necessary safeguards
to ensure that an authorised persons puts in place the practices contemplated in
s19D(2) proposed above
48 It appears that s19D(2) now renumbered (3), in alignment with Article 4 of the
Marrakesh Treaty provides a persons with a disability or someone acting on his
or her behalf including a primary caretaker or caregiver, to make an accessible
format copy of a work for the personal use of the person with a disability or
20otherwise to assist the persons with a disability to make and use accessible
format copies where the beneficiary person has lawful access to that work or a
copy of that work. The only amendment suggested here is to insert the term
"electronic communications" and "literary or artistic" in (a) as follows:
"(2)(3)(a) A person with a disability, or a person that serves persons with
disabilities, to whom the work is communicated by electronic
communication by wire or wireless means as a result of an activity
under subsection (1) may, without the authorization of the owner of the
copyright literary or artistic work, reproduce the work for personal use."
Cross-Border Exchange
49 Article 5 of the Marrakesh Treaty deals with Cross-Border Exchange of
Accessible Format Copies. It is narrowly formulated to reduce potential harm to
rights holders. It provides that:
"Contracting Parties shall provide that if an accessible format copy is made
under a limitation or exception or pursuant to operation of law, that accessible
format copy may be distributed or made available by an authorized entity to a
beneficiary person or an authorized entity in another Contracting Party"
50 Section 19D(3) of the Copyright Bill does not limit the exception to cross border
trade between authorised entities or an authorised entity and persons with
disabilities in other countries. Instead, it permits cross border trade by any
person with a disability or person that serves persons with a disability. This
renders it almost impossible to enforce copyright in these works if the import and
export taking place is legitimate in terms of the exceptions granted by the
Copyright Bill. It is proposed that s19D(3) be re-renumber (4) in line with the other
proposed amendments suggested above and in accordance with Article 6 of the
Marrakesh Treaty which deals with imports by persons with disabilities and the
person who assist them, read as follows:
"(3)(4) A person with a disability or a person that serves persons with
disabilities may, without the authorization of the copyright owner export
to or import from another country any legal copy of an accessible format
copy of a work referred to in subsection (1), as long as such activity is
undertaken on a non-profit basis by that person."
2151 To properly reflect Article 5 of the Marrakesh a new s19D(5) should be inserted
that reads as follows to deal with cross border exchanges of accessible format
copies:
"19D (5) Any authorised person may, without the authorisation of the copyright
owner, distribute or make available for the exclusive use of persons
with disabilities accessible format copies referred to subsection (1) to
an authorised person in another country or to a person with disabilities
in another country."
52 Finally, S19D also departs from the objective of the Treaty which as mentioned
above wanted to address a problem namely that although popular titles of books
are available in braille and audio books accessible by persons with disabilities,
lesser known titles which are distributed around the world in numbers far larger
than those which are popular are not accessible. The intention in the Treaty is
thus not to create a parallel market to the commercial supply of braille and audio
books from which copyright owners legitimately derive revenue, but instead to
address a market failure of those works which are not available in an accessible
format copy. Article 4 of the Marrakesh Treaty thus also offers the opportunity for
a contracting party to confine limitations or exceptions under this Article to works
which, in the particular accessible format, cannot be obtained commercially
under reasonable terms for beneficiary persons in that market. It is unclear why
this reasonable limitation to the exception being granted was not included in the
Copyright Bill, particularly when read in the context of s28P it makes the need to
circumvent TPMs in this case unjustifiable.
53 Accordingly, the following amendments are recommended to the existing s19(4)
which would be renumbered (6) if the other amendments proposed above are
adopted:
"(4)(6) The exception created by this section is for works which, in the
particular accessible format, cannot be obtained commercially under
reasonable terms for people with disabilities and is subject to the
obligation of indicating the source and the name of the author on any
accessible format copy in so far as it is practicable."
54 The illustrative approach above of directly comparing these proposed
amendments in the Copyright Bill to the enabling Treaties in a very specific case
22clearly demonstrates the amount of work that still needs to be undertaken to get
the current version of the Bill ready for publication.
SECTION B: PPA BILL AND INTERNATIONAL TREATIES
55 The applicable International treaties to consider in the context of the PPA Bill are
the WIPO Performances and Phonograms Treaty, 1996, and the Beijing Treaty
on Audiovisual Performances. In our view the Portfolio Committee has dealt with
the following elements of the treaties in the context of the Bills, namely moral
rights, economic rights, right of reproduction, right of distribution, right of rental,
right of making available fixed performances, right of broadcasting and
communication to the public, transfer of rights.
56 The problems that arise in the PPA Bill are not a result of the Treaty obligations
themselves, but how compliance with the obligations is being implemented from
an administrative perspective and with how the Copyright Bill creates legal
uncertainty because it seeks to confer protection rights on performers, 16 which
ought to be done within the strictures of the PPA – a statute which has as its sole
purpose the protection of performers. The use of two separate statutory
instruments to achieve the same purpose is clearly undesirable. If both the
Copyright Bill and the PPA Bill are made law these will be untenable
commercially and will result in confusion, duplication and litigation to the
prejudice of all industry participants, including performers.
57 Compounding the problem is that the two Bills seek to extend these protections
to performers in a very similar manner. Indeed, the differences between the
performer protections proposed to be conferred in the two Bills, at least insofar
as audiovisual works and fixations are concerned, are difficult to discern. What
lies at the heart of the problem is that the definition of audiovisual fixation in the
PPA is virtually identical to the definition of audiovisual works in the Copyright
Bill. We propose the deletion of the performers' protections sought to be
introduced into the Copyright Act on the grounds that the PPA is the appropriate
statutory instrument to deal with performers' rights.
16 See, in this regard, section 9 of the Copyright Bill proposing new section 8A of the Copyright Act
23SECTION C: OTHER ISSUES
58 We are concerned that by restricting submissions to very narrow range of issues
the Portfolio Committee will not be addressing other critical issues in both Bills of
legal uncertainty, issues of constitutionality not raised specifically by the
President, issues of impermissible delegation to the Minister in the PPA Act
which will not be addressed by the proposed deletions in the Copyright Bill and
issues pertaining to provisions which are so irrational, draconian and wholly
unreasonable that they will be challenged in court immediately upon the Bill
becoming an Act.
59 M-Net and MultiChoice have made previously made submissions on these
issues to the Portfolio Committee and have attached a summary of what has
been submitted on each Bill in regard to the issues outlined above in Annexure A.
24ANNEXURE A – SUMMARY OF PREVIOUS SUBMISSIONS
Comments on the PPA Bill
1 Our main submissions concern three sections of the PPA Bill, namely:
1.1 the registration and reporting obligations contained in proposed
section 5(1A) of the PPA;
1.2 the provisions of proposed section 5(5) of the PPA, which deals with a
broadcaster's obligations to make payments to a performer where
payment has already been made to a producer; and
1.3 proposed section 8D of the PPA, which confers wide powers on the
Minister of Trade and Industry ("the Minister") to regulate the
contractual arrangements of private parties.
2 Before we deal with these sections, we raise two issues concerning the
definitions.
Definitions
3 The definition of "producer" is unclear. It includes reference to the person that
"takes the initiative and has the responsibility for the first fixation". It is quite
conceivable that the person who takes the first initiative for the first fixation and
the person who has responsibility for the fixation will be different people. If that
be the case, it is not clear who would be considered the producer. It is also
unclear why a person that simply "takes the initiative" to arrange a fixation (which
may involve no more than suggesting that a fixation be made) should be
considered the producer of that fixation. In our view, the words "the initiative and
has the" should be deleted from the definition so that the producer is defined,
clearly, as "the person who takes responsibility for the first fixation".
4 Secondly, the definitions of "copyright management information",
"technologically protected work", "technological protection measure" and
"technological protection" cross-refer to definitions in the Copyright Act. This is
undesirable because the Copyright Bill may in fact not be passed or may be
25amended in time. It is also unnecessary. These definitions from the Copyright Bill
should be repeated in the PPA (rather than simply cross-referring to those
definitions).
Proposed section 5(1A) of the PPA
5 As we understand it, proposed new section 5(1A)(a) and (c) of the PPA requires
M-Net and MultiChoice, in the first instance, to register every reproduction and
broadcast of a fixed performance carried out by them. Although it appears that
the manner and form of the registration will be contained in the regulations not
yet published, it is, in the first instance, unclear where and with whom M-Net and
MultiChoice should register their intentions. This clarification is important, in
particular given that proposed section 5(1B) renders non-compliance an offence
with sanctions that are draconian in the extreme.
6 More importantly, however, the provisions are unduly burdensome and onerous
for broadcasters of audiovisual fixations and firms that exploit audiovisual
fixations for commercial gain (such as the SABC, Netflix, YouTube, Amazon and
the like); and the sanctions imposed for non-compliance with these provisions
are manifestly unreasonable. We note the following in this regard. Although we
deal only with MultiChoice it should be understood that the firms to which we
have referred above will be in a similar position.
6.1 MultiChoice broadcasts approximately 150 audiovisual channels
currently. These include channels that include mostly local content
(SABC and Mzanzi Magic for example) and channels that include
mostly foreign content (such as the BBC and Disney channels). All of
this content falls within the definition of an audiovisual fixation in the
PPA Bill.
6.2 Most channels are broadcast 24 hours per day, every day.
Advertisements, which are also audiovisual fixations, are flighted on
every channel. Some channels carry more advertisements than others.
6.3 Each month, MultiChoice broadcasts approximately 108000 hours of
audiovisual fixations (films, television series, documentaries,
26advertisements etc) on its audiovisual channels. When due regard is
had to the advertisements that will form part of any broadcast, it is
reasonable to assume that the average broadcast hour will involve the
broadcast of about 10 audiovisual fixations (we exclude the
reproductions of each fixation that will form part of the broadcast).
6.4 Every audiovisual fixation will include fixations of performances by
numerous performers. MultiChoice estimates that every hour of
television broadcast by it of an audiovisual fixation (including
advertisements) will involve at least 50 performances by actors,
actresses and musicians (spread across the 10 audiovisual fixations
broadcast every broadcast hour).
7 It will be evident from what is said above that MultiChoice will, if the PPA Bill is
passed, be required to register more than 5 million broadcasts of individual
performances every month. This task is so vast as to render the requirement to
do so (on pain of severe punishment) clearly unreasonable.
8 In addition to its broadcasts, MultiChoice makes available audiovisual fixations
of performances on its on-demand platforms, ShowMax and DSTV Now. There
are, on average 30 million "play events" (downloads by users) every month.
Every one of these play events will involve the making available to the public of
numerous performances (because every play event involves numerous actors
and actresses) and each performance by each actor and actress may therefore
have to be registered in its own right. At the very least every performance on
every audiovisual fixation made available on the on-demand platforms would
have to be registered as being available. This is, in itself, another unduly
burdensome undertaking.
9 In addition to these registrations are the separate registrations (for the same
broadcasts) which will now apparently be required under the proposed new
section 8A(6) of the Copyright Bill.
10 It follows that, if these registration provisions are made law, the department or
firm charged with administering the registrations will likely be receiving several
million registrations every month from MultiChoice alone.
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